By Vishal Makol of OTS Solicitors
3 cases are currently before the Supreme Court dealing with the application of the test of reasonableness when deciding whether it is reasonable to remove a child from the UK after he or she has been here for 7 years. After the hearing in April, along with other London immigration solicitors, we are awaiting the decision of the Supreme Court with interest. In this blog, we look at the legal context in which these cases have arisen.
Claims for leave made by children
Paragraph 276 ADE (1) of the immigration rules allow an applicant for Leave to Remain in the UK to be granted that leave provided they satisfy certain requirements. With respect to an application by a child, the child must
(i) … not fall for refusal under any of the grounds in Sections S-LTR 1.2 to S-LTR 2.3 and S-LTR.3.1 certain provisions in Appendix FM; and
(ii) [Have] made a valid application for Leave to Remain on the grounds of private life in the UK; and …
(iv) [be] under the age of 18 and has lived continuously in the UK for at least 7 years… and it would not be reasonable to expect the applicant to leave the UK…
The other way the reasonableness test is engaged where a child has lived in the UK for more than 7 years is in the context of an Article 8 claim (private and family life) by someone exercising a parental role in relation to that child. The legal framework is contained in sections 117A and 117 B of the Nationality immigration and Asylum Act 2002, in Part 5A of that Act – ‘Article 8 ECHR: Public Interest Considerations’. When the court or tribunal is considering whether a decision made under the immigration acts would breach a person’s Article 8 rights and therefore be unlawful under section 6 of the Human Rights Act 1998, section 117B(6) provides:
“In the case of a person who is not liable to deportation, the public interest does not require a person’s removal where –
(a) The person has a genuine and subsisting parental relationship with a qualifying child, and
(b) It would not be reasonable to expect the child to leave the United Kingdom.”
A ‘qualifying child’ is a person under 18 and who is either a British Citizen, or has lived in the UK “…for a continuous period of 7 years or more.” (Section 117D).
Distinguishing the different legal provisions
Although the critical question in both contexts is whether it would be unreasonable for the child who has lived in the UK for 7 years to be expected to leave, there are some differences in the provisions. Primarily, and as already pointed out, paragraph 276 ADE(1) deals with applications for Leave to Remain made by the child, while sections 117A and 117B of the 2002 Act deal with situations where a court or tribunal are considering whether a determination about someone else would breach that person’s Article 8 rights because they have a genuine and subsisting relationship with the child. Paragraph 276 ADE(1) deals with applications based on private life only, while the provisions in sections 117 A and B deal with private and family life. There is also a difference in the calculation of the 7 year period – under 276 ADE(!) it is to the date of the application, while under 117B the calculation date is the date the court makes its determination.
The Court of Appeal’s approach to the reasonableness test
As anyone considering the rules on UK immigration for parents will appreciate, and as the Court of Appeal highlighted in its decision in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (immigration and Asylum Chamber) & Anor  EWCA Civ 70 which is one of the decisions under appeal to the Supreme Court, the best interests of the child is a primary consideration which has to be taken into account in all cases where the child’s interests are affected, and will be highly relevant when applying the reasonableness test [para 23 of the Court of Appeal’s decision in MA].
However, as the law currently stands, just because the child’s best interests are a paramount consideration does not mean that it will be unreasonable for a child to be expected to leave the UK, even if it would be in their best interests to stay. The current position that many immigration appeal solicitors are currently grappling with, is that although a child’s residence will have significant weight when carrying out the proportionality exercise that applies to any Article 8 claim, the court or tribunal can still take into account the conduct of the parents in deciding whether to remove the child or not. In part, this results from a legal analysis of the provisions in section 117C of the 2002 Act which deals with the determination of whether the removal of a child would be ‘unduly harsh’ when the parent is liable to deportation. By drawing parallels, the Court of Appeal found that it was impossible to leave out public interest considerations from the decision.
If you are looking for a Legal 500 immigration solicitor to advise you on your claim to stay in the UK based on an argument that it would be unreasonable to expect your child to leave the UK, contact OTS Solicitors. We have many years’ experience handling immigration cases, including article 8 immigration matters and applications for Leave to Remain under paragraph 267 ADE(1) of the immigration rules. Call 0203 959 9123 to book an appointment with one of our specialist immigration lawyers today.
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Posted on: Friday, 08 June, 2018